Examples of major regional, sub-regional and basin treaties

As mentioned above, the European continent, including the European Union (EU), maintains a specific regional cooperation framework under the UNECE Water Convention. The EU itself also has a sui generis supranational water regime that influences co-riparian water relations extensively. Below these two multilateral layers European countries have developed a comprehensive system of basin and bilateral treaties. As a result, today most river basins in the EU are subject to formalised governance schemes. A 2012 survey, commissioned by the European Commission⁷⁴, identified only three international basins with no formal cooperation agreement in place: the Marica-Evros/Meric between Greece, Bulgaria and Turkey, the Axios/Vardar between Greece, Macedonia, Serbia and the Adige/Etsch basin between Italy and Switzerland. All other transboundary watercourses and lakes are subject to at least one dedicated treaty. The majority of such treaties also established river basin organisations or some kind of formal cooperation bodies (in the case of basins shared by two states only typically the frontier water commission).

The most important European basin treaties include the Danube Convention⁷⁵, the Rhine Convention⁷⁶, the Sava Framework Agreement,⁷⁷ the Conventions for the Elbe⁷⁸ and the Oder⁷⁹ rivers, the Meuse Agreement⁸⁰ and the Spanish-Portuguese Basins Convention (Albufeira Convention)⁸¹. Given its specific features and outstanding relevance the European system of transboundary water governance is discussed in a separate course material⁸².

b) Africa

The origins of transboundary water agreements in Africa are rooted in the colonial past.

Colonial powers had a preference to use transboundary waters to demarcate their spheres of influence. To that effect they concluded a number of bilateral treaties to which today’s watercourse states were not parties. In the wake of decolonisation the number of transboundary water agreements multiplied quickly, followed by the establishment of the first river basin organisation in 1964 (Niger River Commission, today: Niger Basin Authority⁸³). Today, while Africa has a growing number of basin treaties, over half of the basins are still not covered, fully or partly, by treaties. The greatest progress in this regard has been achieved in Southern Africa, where under the auspices of the Southern African Development Community (SADC), the

74 WRC (2012) p. 279-290.

75 Convention on Cooperation for the Protection and Sustainable Use of the Danube, Sofia, 29 June 1994.

76 Convention on the Protection of the Rhine, Bern, 12 April 1999.

77 Framework Agreement on the Sava River Basin, Kranjska Gora, 3 December 2002.

78 Convention on the International Commission for the Protection of the Elbe, Magdeburg, 8 October 1990.

79 Convention on the International Commission for the Protection of the Oder, Wroclaw, 11 April 1996

80 International Agreement on the River Meuse (Accord international sur la Meuse), Gent, 3 December 2002

81 Convention on the Co-operation for the Protection and the Sustainable Use of the Waters of the Luso-Spanish River Basins, Albufeira, 30 November 1998

82 See Gábor Baranyai: The water policy and law of the European Union.

83 Agreement Concerning the Niger River Commission and the Navigation and Transport on the River Niger, Niamey, 25 November 1964.

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Republic of South Africa has been the driving force behind expanding and/or revising the basin treaty and institutional structure⁸⁴. The SADC adopted its first transboundary water governance agreement – the SADC Protocol on Shared Watercourses – in 1995. This was replaced by a Revised Protocol⁸⁵ in 2000 that entered into force in 2003. To a large extent, the Revised Protocol mirrors the provisions of the 1997 UN Watercourses Convention. It is based on the equitable and reasonable utilisation principle and the no-harm rule. The Revised Protocol also foresees the adoption of basin agreements and commissions.

In early 2018, the countries of the Central African region adopted a new regional instrument under the title Convention for the Prevention of Conflicts Related to the Management of Shared Water Resources in Central Africa. The new Convention is strongly rooted in the UNECE Water Convention and the UN Watercourses Convention. It lays out a number of key provisions, including: rules on equitable and reasonable use of shared resources; the prevention of transboundary impact; transboundary and regional cooperation; the development of basin agreements and the establishment of transboundary basin organizations; and the integrated management of transboundary water resources⁸⁶.

Highly developed basin-regimes have been put in place other parts of Africa too, such as the Senegal, the Niger or the Chad basins. Significant challenges remain however all over the continent, in particular in the Nile basin where there is a fundamental tension between historic water allocation rights, accentuated by divergent developmental needs and policies of upstream and downstream riparian states⁸⁷.

c) North America

In North America treaty frameworks addressing transboundary waters between the United States and Canada, on the one hand, and the United States and Mexico, on the other, were developed over a century ago⁸⁸. North America does not have a continent-wide transboundary water treaty or organisation (even though both the US and Canada are members of the UN Economic Commission for Europe, thus could have become a party to the UNECE Water Convention even before its global opening). Instead, the institutional backbone of the North American transboundary water cooperation is comprised by two bi-national water commissions and a series of treaties adopted since the late 19^th century.

The US-Canada International Joint Commission was established by the 1909 Boundary Waters Treaty. The Treaty’s geographical scope extends to all waters that flow across or along the US-Canadian international border. It applies to all infrastructure developments, diversions and other alterations affecting the other riparian state. The Treaty also places restrictions on transboundary water pollution through the stipulation of an early version of the “no-harm”

principle. Naturally, the original 1909 Treaty does not address a number of topical issues of our

84 Transboundary water management in Africa: challenges for development cooperation (2006) p. 3. Members of the Southern African Development Community include: Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, United Republic of Tanzania, Zambia, Zimbabwe. Source: http://www.sadc.int/member-states/ (accessed 18 July 2018).

85 Southern African Development Community Revised Protocol on Shared Watercourses, Windhoek, 7 August 2000.

86 https://www.unece.org/info/media/presscurrent-press-h/environment/2017/central-african-countries-approve-regional-convention-on-transboundary-water-cooperation-with-unece-support/doc.html (accessed 18 July 20018).

Contracting parties include Angola, Burundi, Cameroon, Central African Republic, Chad, Democratic Republic of Congo, Equatorial Guinea, Gabon, Republic of Congo, Rwanda and São Tomé and Príncipe.

87 De Stefano et al. (2012) p. 202.

88 Neir et al. (2009) p. 17.

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current era, such as the ecological status of waters or groundwater management. The two countries also singed a range of additional bilateral treaties addressing transboundary water management in specific basins such as the Great Lakes, the Niagara River, Columbia River, Skagit River, St. Lawrence River, etc.⁸⁹

The legal and institutional foundations of US-Mexico cross border water cooperation also go back to the late 19^th century. In 1889 the International Boundary Commission was created to handle specifically border and water issues (it was changed to International Boundary and Water Commission in 1944). Given the predominantly arid environment of the border region, allocation issues have dominated bilateral water relations since the outset. The first agreement on the subject was adopted as early as in 1906, setting the precise amount of water the US must deliver to Mexico. This was replaced in 1944 by a more comprehensive agreement covering both the Rio Grande and the Colorado rivers⁹⁰.

d) Latin America

Despite various efforts to create comprehensive Inter-American water cooperation mechanisms since the 1930s, in Latin America the institutionalisation of transboundary water governance is still at an early phase of development⁹¹. Exceptions include the La Plata, Amazon or the Titicaca basins. In the La Plata basin formalised basin-wide cooperation goes back to the signing of the La Plata Basin Treaty⁹² in 1969 which, to a large extent, was triggered by the development of hydro-electric power in the region. The treaty provides a framework for the joint development of the catchment area, calls for open transport along the river and its tributaries, requires joint management of non-water resources (soil, forest, flora, and fauna), etc.

As regards the Titicaca basin the first formal cooperation agreement – the Preliminary Convention for the Study of the Use of the Waters of the Lake Titicaca⁹³ – was adopted in as early as 1957 (it however only entered into force in 1986 when Bolivia finally ratified it). The Convention is based on the “indivisible and exclusive joint ownership of both countries of the waters of the lake,” whose control is carried out by a joint management body (originally a joint commission, today the Autonomous Binational Authority of Lake Titicaca). The purpose of the Convention is to promote development within the basin of Lake Titicaca in a manner that would not disrupt the flow and volume as to affect the navigational uses of the body of water, an objective that is being fulfilled only partially even these days⁹⁴.

e) Asia

South and Southeast Asia is home to about 2 billion people and covers four major international river systems: the Ganges-Brahmaputra-Meghna, the Indus, the Mekong and the Salween basins. While these basins have some kind of treaty based-cooperation (except for the Salween river), the relevant treaties largely fail to deal with the emerging new problems and pressures with a comprehensive, basin-wide approach⁹⁵.

89 Ibid p. 18.

90 Ibid p. 21.

91 Newton (2007) p. 58.

92 Treaty on the Rio de la Plata Basin, Brasilia, 14 August 1970.

93 Preliminary convention between Peru and Bolivia concerning a study of the joint utilization of the waters of Lake Titicaca, Lima, 30 July 1955.

94 Newton (2007) p. 212.

95 Kanwar et al. (2009) p. 53.

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As regards the Ganges-Brahmaputra-Meghna river system disputes between India and Bangladesh have been prevalent since the partition of the Indian subcontinent in 1947. The most notable such event was the damming of the Ganges by India in 1975 so as to divert the majority of water into other rivers running into the Bay of Bengal. The differences between India and downstream Bangladesh were reconciled only in 1996 by the adoption of the Ganges Water Sharing Treaty⁹⁶.

A similarly notorious water allocation issue in the subcontinent concerned the Indus river system. Here, India’s unilateral manipulation of discharges into Pakistan after the partition led to the adoption, in 1960, of the Indus Waters Treaty between two counties⁹⁷. While the Treaty, brokered by the World Bank at the time, has withstood the test of difficult times between the two countries, its relatively rigid structure and narrow scope has already become a core concern in the region.

There are, however, more promising examples of cooperation in the Southeast Asia region. E.g.

collaboration among the riparian states of the lower Mekong, the longest river of the South Asian region, dates back to the 1950s. Such cooperation, however, remains ineffective with regards to many basin-wide issues as China stays outside all relevant formal arrangements.

Today, the framework of collaboration in the lower Mekong Region is the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin⁹⁸ signed by Cambodia, Laos, Thailand and Vietnam.

Many of the international rivers of West Asia (Middle East), such as the Tigris, Euphrates, Jordan, suffer not only from severe human and climatic pressures. Cooperation is also hampered by the general political instability prevailing in the region. Not surprisingly, the management of the largest water system in the region: Tigris-Euphrates/Shatt Al-Arab has been the subject of continuous uncertainty and disagreement⁹⁹. The lack of a basin agreement in the region is largely the result of upstream Turkey’s unilateral development policies that reflects the country’s projection of the out-dated doctrine of absolute territorial sovereignty over water resources.

While inter-state disputes over water tend to reach high political intensity in the Central Asian region too, the countries concerned also benefit from the UNECE Water Convention and the various international development programmes aimed at stabilising the hydro-political situation through cooperation. Unlike many other Asian regions, Central Asia does have a well-established legal framework for transboundary water cooperation. These include, on the one hand, the various bilateral and multilateral agreements relating to the Interstate Commission for Water Coordination of Central Asia¹⁰⁰ and, on the other, the 1999 Agreement on the Status of the International Fund for saving the Aral Sea and its organisations¹⁰¹.

Importantly, a comprehensive multilateral transboundary water governance treaty was also adopted in 1998 under the auspices of the Commonwealth of Independent States. The

96 Treaty between the Government of the Republic of India and the Government of the People’s Republic of Bangladesh on sharing of the Ganga/Ganges water at Fakarra, New Delhi, 12 December 1996.

97 Indus Waters Treaty, Karachi, 19 September 1960.

98 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Chieng Rai, 5 April 1995.

99 Klise et al. (2009) p. 77.

100 http://www.icwc-aral.uz/legal_framework.htm (accessed 18 July 2018)

101 http://ec-ifas.waterunites-ca.org/aral_basin/legal-issues/conventions-and-agreements/166-law-applied-to-transboundary-waters-in-the-aral-sea-basin.html (accessed 18 July2018)

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agreement¹⁰² – which largely follows the provisions of the UNECE Water Convention – entered into force in 2002. As, however, only Russia, Belarus and Kyrgyzstan ratified it, the real significance of this instrument has thus far remained minimal in Central Asia.

102 Agreement on the General Principles of the Rational Use and Protection of Transboundary Water Bodies of the State Members of the Commonwealth of Independent States, Moscow, 11 September 1998.

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CHAPTER VI

THE LAW OF TRANSBOUNDARY WATER GOVERNANCE

VI.1. THE DISTRIBUTION OF TRANSBOUNDARY RIVER BASINS IN THE WORLD Following commonly accepted geographical definitions a “river basin” is understood in the context of this study as an area which contributes to a first order stream. First order streams are those that communicate directly with the final recipient of water (oceans, closed inland lakes or lakes). As a result, subsidiary basins are not accounted for as independent hydrological units however sizable they may be (e.g. the entire Sava catchment forms part of the Danube basin).

A river basin is considered “transboundary” (“international”, “shared”, etc.) when it intersects or demarcates political boundaries. Importantly, a river basin qualifies as transboundary not only where a particular stream effectively flows through or creates state borders, but where political borders intersect parts of the catchment area that discharges water into the basin only through downhill drain of rain or snow melt or through the subsoil.

The Transboundary Freshwater Dispute Database (TFDD) – the most extensive relevant dataset maintained by the Oregon State University – identifies 263 international river basins. According to the TFDD the European continent has the largest number of international basins (69), followed by Africa (59), Asia (57), North America (40), and South America (38). The number of countries that contribute to transboundary basins is 145, thus the majority of countries share at least one transboundary river basin with neighbouring countries. 33 of these, including such sizeable countries as Bolivia, Chad, the Democratic Republic of Congo, Hungary, Niger or Zambia have more than 95% of their territories within the hydrologic boundaries of international river basins.

Transboundary basins cover about 47% of the Earth’s surface (Antarctica excluded). These basins account for about 60% of the global river flow. About 40% of the global population lives in basins shared by at least two countries¹⁰³. Countries with no shared basins are either islands or microstates, except for the countries of the Arabian Peninsula where no permanent watercourses exist.

VI.2. GENERAL QUESTIONS OF TRANSBOUNDARY WATER GOVERNANCE The majority of modern water treaties deal with the management of transboundary water resources along a number of clearly identifiable subjects. These include:

- the availability of water (quantitative aspects of water management),

- the quality of water (environmental and ecological aspects of water management), - economic utilisation of transboundary water resources (mainly navigation, hydropower

development, storage/irrigation, fishing),

- management of hydrological variability (floods, droughts, etc.)

103 Wolf et al. (1999) p. 391-392.

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- institutional questions such as

• procedures for interventions in the basin with transboundary impacts,

• monitoring and exchange of information,

• institutional frameworks of cooperation,

• dispute settlement.

The above full range of subjects rarely appears in one single treaty. Indeed, several relevant issues do not even appear in “proper” water treaties. E.g. certain navigation or water allocations issues have, historically, been covered by general border treaties¹⁰⁴. Water related ecological issues, on the other hand, often appear in regional or bilateral environmental agreements.

VI.3. WATER QUANTITY MANAGEMENT

VI.3.1. The importance of water quantity in transboundary water cooperation

International law does not recognise the property rights of riparian states over freshwater resources rising in or flowing through their territories. Instead, in accordance with the principles of limited territorial sovereignty and the ensuing requirement of equitable and reasonable utilisation, it regulates various quantitative aspects of the management of shared waters.

Water quantity management in a transboundary context has several dimensions. The most apparent facet is the distribution of flow volumes among riparian states in regular conditions, including natural variations. Another dimension of water quantity management is the control of stream flow in extreme situations, i.e. where volumes exceed the regular ranges of fluctuation for reasons of natural character (floods, droughts) or of human origin (accidental releases).

Finally, water quantity management includes deliberate human interventions to control river flow (volumes, timing) by way of water infrastructure (e.g. reservoirs) and other management measures (e.g. the reduction of upstream water abstraction in times of drought). A critical, albeit not quintessential element of quantity management is the deliberate partition of volumes of water among riparian states: water allocation. Water sharing mechanisms can be classified as follows:

- direct allocation mechanisms: these clearly stipulate how the water is to be divided between the parties. Direct allocation mechanisms can be flexible that distribute the resource by percentages or set quantities according to water availability. On the other hand, direct fixed mechanisms divide water by absolute volumes,

- indirect allocation mechanisms: indirect allocation mechanisms establish processes through which actual allocations are to be determined, but without codifying the specific quantities or proportions to be shared. These include:

- consultations between parties,

- an obligation to notify when water need arise,

- a requirement for co-riparians to consent to any increased water use, - prioritisation of uses, etc.

104 See the US-Mexico relations in Section V.2.2. c) above.

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- allocation principles and guidelines: these are broader ideas or concepts for determining how water should be allocated now or in the future. Such principles include:

- equitable and reasonable utilisation, - rational use,

- sustainable use, - no harm,

- protection of existing uses¹⁰⁵.

Each mechanism has its benefits and drawbacks. Direct mechanisms provide clarity, but it can be difficult to reach agreement on actual quantities of water. Direct fixed mechanisms may effectively ignore natural fluctuations in water quantity, let alone out-of-range variations triggered by climate change. If the allocation mechanism is rigid and inflexible, the parties are less able to honour their commitments once water availability changes. Indirect mechanisms are flexible, but at the same time they are open-ended which may turn problematic when clearer direction is needed. Such ambiguity may allow parties to reach an agreement relatively easily, but may also lead to controversy later, especially when the availability of water does not satisfy all parties’ needs. This applies particularly to the broad legal principles of water sharing that – surprisingly – have very little practical impact on the actual practice of water allocation¹⁰⁶. VI.3.2. Water allocation mechanisms in international water law

Historically, water allocation has been a dominant feature of international water treaties. Water sharing schemes have been the primary focus of almost 40% of all transboundary water agreements concluded during the 20^th century, only to be surpassed slightly by

Historically, water allocation has been a dominant feature of international water treaties. Water sharing schemes have been the primary focus of almost 40% of all transboundary water agreements concluded during the 20^th century, only to be surpassed slightly by

In document INTERNATIONAL WATER LAW: AN INTRODUCTION (Pldal 19-0)